[Fsfe-ie] Re: Some help with understanding the directive document?

teresahackett at eircom.net teresahackett at eircom.net
Fri Aug 26 22:17:51 CEST 2005

Hi Ciaran,

There are two parts, a Council framework decision and a proposal for a
Directive. They are usually separate political processes and have
different procedures. Here there are two stages, but each process will 
follow the same procedure as usual. The framework decision lies mainly 
with the Council with little role for the parliament. The procedure for 
the Directive should be the same as usual. Perhaps you should check this
with a local.

Why do they need a framework decision?
Criminal sanctions are a matter for Member States under the principle of 
subsidiarity. The Council framework decision is necessary to override 
the principle of subsidiarity in this instance, so that there can be 
Directive on this issue. Otherwise, the Directive could be challenged in 
the ECJ and would be likely deemed illegal. There is case law on this. 
This is why criminal sanctions were removed from IPRED1, as it was 
likely the Directive would have been struck down by the ECJ.

So we should support the organised crime parts but get rid of commercial
scale and the TRIPS+ provisions e.g. inciting infringements, etc.

There's probably not much we can do on the framework decision, but we 
should be able to lobby for the directive. But take advice on this!


Ciaran O'Riordan wrote:
> For the letter, I'm analysing the text of the IPRED2 directive but I'm
> having a problem:  There are two sets of articles, so which one do we
> comment on?  or do we comment on both?
> http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0276en01.pdf
> It's a 15 page document.  On page 5 starts the "Directive of the european
> parliament and of the council", and on page 12 starts the "Council framework
> decision".
> The latter looks to be ok, the punishments are limited to crimes carried out
> "under the aegis of a criminal organisation, withing the meaning of the
> Framework Decission .... on the fight against organised crime, or where
> theycarry a health or safety risk".  (The "...." is in the document, it's
> not my own, I presume that will be replaced by the documents own number when
> it gets one.)
> The first set of articles are wretched.  Article 3:
>  "Member States shall ensure that all intentional infringements of an
>   intellectual property right on a commercial scale, and attempting, aiding
>   or abetting and inciting such infringements, are treated as criminal
>   offences."
> ...so aiding commercial copyright breaches - e.g. publishing software that
> can be used to copy music, could be criminal.  Copying music could be
> "commercial scale" even without any sale taking place because the music
> industry will claim that every copy is like robbing 25 euro.
> So do we comment on both and who are we talking to.  My understanding is
> that this directive process requires unanimity in the Council and the
> parliament's role is purely advisory.  But I'm not sure if that applies to
> the two directives here or just the first.  Any help appreciated.

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